Attorney General Eric Holder on Friday cautioned against using data to determine the length of sentences for criminals, saying such a practice could "exacerbate unwarranted and unjust disparities that are already far too common in our criminal justice system and in our society."
In a speech before the National Association of Criminal Defense Lawyers' 57th annual meeting in Philadelphia, Holder embraced the use of data analysis in predicting where crime is likely to happen and for risk assessments on the "back-end," as when determining how best to prepare inmates to re-enter society.
But Holder also warned that using "static factors and immutable characteristics, like the defendant's education level, socioeconomic background or neighborhood" to determine the length of a person's sentence could have unintended consequences.
"Although these measures were crafted with the best of intentions, I am concerned that they may inadvertently undermine our efforts to ensure individualized and equal justice," Holder said. "Criminal sentences must be based on the facts, the law, the actual crimes committed, the circumstances surrounding each individual case, and the defendant's history of criminal conduct. They should not be based on unchangeable factors that a person cannot control, or on the possibility of a future crime that has not taken place. Equal justice can only mean individualized justice, with charges, convictions, and sentences befitting the conduct of each defendant and the particular crime he or she commits."
Holder's remarks coincide with a request from the Justice Department to the U.S. Sentencing Commission to study how data analysis is currently being used in sentencing, and to issue recommendations on how such analysis should be used. In a letter to the commission, the Justice Department expressed reservations about components of sentencing reform legislation pending in Congress that would base prison sentences on factors such as "education level, employment history, family circumstances and demographic information," calling it a "dangerous concept that will become much more concerning over time as other far reaching sociological and personal information unrelated to the crimes at issue are incorporated into risk tools."
The letter to the commission also takes note of an "explosion in the use of data analytics to identify patterns of human behavior and experience and bring new insights to fields of nearly every kind" since the publication of Moneyball, a book by Michael Lewis about how the Oakland Athletics used statistical data to predict the future performance of baseball players. Former New Jersey Attorney General Anne Milgram first connected the term "moneyball" to the use of data analysis by the criminal justice system.
Now the nation's fourth longest-serving attorney general, Holder has worked to make criminal justice reform a key part of his legacy. In his speech, he said the nation has reached "a watershed in the debate over how to reform our sentencing laws," and that blending the so-called truth in sentencing approach, which has sought more equal sentences (but has also led to a massive growth in the prison population), and data-driven analysis may offer the best approach.
"The legacy of the truth in sentencing era is the lesson that the certainty of imposing some sanction for criminal behavior can indeed change behavior. And the 'Big Data' movement has immense potential to make the corrections process more effective and efficient when it comes to reducing recidivism rates. A blending of these approaches may represent the best path forward," Holder said.
DOJ's letter to the Sentencing Commission is below: